Chapter 2
General matters

Features of contempt

2.9Punitive measures for contempt of court were typically the imposition of a fine or a term of imprisonment. At common law, there was no limit upon the sentence of imprisonment. It could be for any finite period determined by the judge or for an indeterminate period, ending only when the person held to be in contempt complied with the relevant order of the court.

2.10Today, following the Supreme Court decision in Solicitor-General v Siemer,11 the maximum penalty must be less than that specified in the New Zealand Bill of Rights Act 1990 (Bill of Rights Act), which guarantees a person charged with an offence the right to a jury trial where the sentence that may be imposed is two years’ imprisonment or more.12

2.11Traditionally, forms of contempt were regarded as either criminal or civil, depending on their purpose. Conduct requiring punishment for undermining the administration of justice was regarded as criminal contempt, while civil contempt was reserved for situations involving the need to coerce compliance with a court order or judgment in a civil action. As discussed in Chapter 7, that distinction has less relevance today.

2.12The most distinguishing feature of the contempt jurisdiction is that it is summary. This means that contempt matters are dealt with by a judge alone, rather than a judge and jury, and may be actioned by the judge immediately on the spot. The summary procedure allows prompt intervention, as judges need to control their courtroom and ordinary criminal processes were historically regarded as too slow and cumbersome to provide adequate protection for the administration of justice. McGrath J recently described the summary procedure, noting that:13

[6] Under the summary procedure, there is no preliminary inquiry, committal procedure or requirement for an indictment. Historically the judge could take the initiative in the proceeding, determine the grounds of complaint, identify witnesses and inquire into what they had to say. The judge would then determine guilt or innocence and the sentence to be imposed. More recently, when out of court conduct is involved, contempt proceedings have been brought by a law officer, usually the Solicitor-General.

[7] Over the years, the summary process has come to include the safeguards normally available to accused persons to protect their rights with the exception of the right to trial by jury.

2.13At common law, there was no appeal in cases of criminal contempt, but that has been superseded by legislative amendment.14

2.14Unlike other conduct that results in criminal penalties, criminal contempt cases are given a civil file number in the court system, as they are commenced by way of an originating or interlocutory application, and convictions are not recorded on the offender’s criminal record. Proceedings are generally brought by a Crown counsel in the name of the Solicitor-General, rather than by the police prosecution service, but the court can act of its own motion also.

11Siemer v Solicitor-General [2010] NZSC 54, [2010] 3 NZLR 767.
12​New Zealand Bill of Rights Act 1990, s 24(e).
13Siemer v Solicitor-General, above n 11.
14Criminal Procedure Act 2011, pt 6, subpt 5.